Citation Nr: 9817543
Decision Date: 06/08/98 Archive Date: 06/22/98
DOCKET NO. 96-29 144 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Reno,
Nevada
THE ISSUES
1. Entitlement to a disability evaluation in excess of 70
percent for post-traumatic stress disorder (PTSD).
2. Entitlement to an effective date earlier than June 30,
1995, for the grant of service connection for PTSD.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The appellant
ATTORNEY FOR THE BOARD
Robert E. O'Brien, Counsel
INTRODUCTION
The veteran had active service from October 1968 to August
1970.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an April 1996 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Reno, Nevada, which granted service connection for PTSD and
assigned a 50 percent evaluation, effective June 30, 1995,
the date of receipt of the veteran's claim. By rating
decision dated in December 1996, the previous rating action
was amended to reflect a 70 percent disability evaluation for
the PTSD, effective June 30, 1995. In that rating decision
it was also determined that the veteran was entitled to a
total rating based on unemployability by reason of service-
connected disabilities.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran and his representative maintain that a total
compensation rating is warranted for his PTSD. It is
asserted that the PTSD symptoms render the veteran unable to
obtain and maintain employment. With regard to an earlier
effective date, the veteran and his representative contend
that the award of service connection for PTSD should be made
effective June 30, 1994, at the minimum. It is claimed that
this is the date that an official VA letter established that
a claim for service connection for PTSD was pending.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the evidence supports an
evaluation of 100 percent for PTSD, and an effective date of
October 19, 1994, for the grant of service connection for
PTSD.
FINDINGS OF FACT
1. All available relevant evidence necessary for an
equitable disposition of the appeal has been obtained.
2. The veteran is demonstrably unable to obtain or retain
employment due to PTSD.
3. PTSD was diagnosed on an examination conducted by a VA
psychologist on October 19, 1994.
4. The veteran's claim specifying that he was seeking
service connection for PTSD was received on June 30, 1995.
CONCLUSIONS OF LAW
1. A 100 percent evaluation for PTSD is warranted.
38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. §§ 4.1,
4.7, 4.132, Diagnostic Code 9411 (1997).
2. An effective date of October 19, 1994, for the grant of
service connection for PTSD is warranted. 38 U.S.C.A.
§§ 5107, 5110 (West 1991); 38 C.F.R. §§ 3.157, 3.400 (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Entitlement to a Disability Evaluation Greater Than
70 Percent for PTSD.
The veteran's claim is well grounded within the meaning of
38 U.S.C.A. § 5107 in that he has presented a claim which is
plausible. The Board finds that the facts relevant to the
issue on appeal have been properly developed and that the
statutory obligation of VA to assist the veteran in the
development of his claim has been satisfied. 38 U.S.C.A.
§ 5107(a).
Disability evaluations are determined by the application of
the VA's Schedule for Rating Disabilities, which is based on
the average impairment of earning capacity. 38 U.S.C.A.
§ 1155 (West 1991); 38 C.F.R. Part 4 (1997). Separate
diagnostic codes identify the various disabilities. When
there is a question as to which of two evaluations shall be
applied, the higher evaluation will be assigned if the
disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7 (1997).
PTSD is rated as a psychoneurotic disorder under 38 C.F.R.
§ 4.132, Diagnostic Code 9411 (1997). A 70 percent
evaluation may be assigned where it is demonstrated that the
ability to establish and maintain effective or favorable
relationships with people is severely impaired, and the
psychoneurotic symptoms are of such severity and persistence
that there is severe impairment in the ability to obtain or
retain employment. A 100 percent evaluation may be assigned
when the attitudes of all contacts except the most intimate
are so adversely affected as to result in virtual isolation
in the community, where there are totally incapacitating
psychoneurotic symptoms bordering on gross repudiation of
reality with disturbed thought or behavioral processes
associated with almost all daily activities such as fantasy,
confusion, panic and explosions of aggressive energy
resulting in profound retreat from mature behavior, and where
the veteran is demonstrably unable to obtain or retain
employment.
The provisions of 38 C.F.R. §§ 4.129 and 4.130 provide that
social and industrial adaptability is the basic criterion for
rating mental disorders and two of the most important
elements to consider are time lost from gainful work and
decrease in work efficiency. Moreover, an examiner's
classification of psychiatric disability is not determinative
of degree of disability, but the report and the analysis of
symptomatology and full consideration of the history will be
determinative. Id. In this connection, it will be
remembered that a person may be too disabled to engage in
employment, although he or she is up and about and fairly
comfortable at home or upon limited activity. 38 C.F.R.
§ 4.10 (1997).
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the veteran prevailing in either
event, or whether a preponderance of the evidence is against
the claim, in which case, the claim is denied. 38 U.S.C.A.
§ 5107 (West 1991); Gilbert v. Derwinski, 1 Vet. App. 49, 55
(1991).
While the veteran's PTSD disability picture does not meet
each of the criteria of the 100 percent schedular evaluation,
the United States Court of Veterans Appeals (Court) has held
that the criteria in Diagnostic Code 9411 for a 100 percent
evaluation are each independent bases for granting a
100 percent evaluation. See Richard v. Brown,
9 Vet. App. 266, 268 (1996); Johnson v. Brown,
7 Vet. App. 95, 97 (1994).
In this case, the Board finds that the veteran is
demonstrably unable to obtain or retain employment, thus
warranting a 100 percent evaluation under Diagnostic
Code 9411. Notably, a VA clinical nurse specialist stated in
May 1996 that the veteran had been enrolled in the PTSD
outpatient clinic at a local health care facility since
August 1995 and had been a member of a case management group
and was being followed for psychotropic medications. The
nurse noted that the veteran endorsed the full range of PTSD
symptoms and his ability to function in society was greatly
limited. She added that he managed his symptoms by being
very socially isolated to decrease stimuli and anxiety. The
veteran had had trouble with consistent compliance with his
medication and the compliance problem was reflective of his
trouble organizing himself. Notation was made that in the
past the veteran had functioned as an independent contractor
doing small repair/remodeling jobs. However, considering his
current level of function, it was difficult to visualize his
return to such employment in the near future. The nurse
noted the veteran was enrolled in a residential
rehabilitation program and appeared to benefit from the added
structure and support, but a brief trial at independent
living in the community resulted in increased
disorganization, non-compliance with medication, decreased
attendance at group therapy sessions, and increase in
agitation and anxiety. The nurse noted that, although the
veteran reported a sincere desire to return to full
employment and independent living, at the present time he was
advised to focus on treatment and stabilization and was
described as not able to focus, concentrate, follow through,
or prioritize.
Additional medical evidence of record includes a September
1996 communication from a clinical psychologist at the PTSD
outpatient clinic at a VA medical facility. It was noted the
veteran had begun attending weekly group psychotherapy
sessions at that facility in November 1995 and had also been
followed in the addictions treatment center during the same
time frame for psychotropic medication management as
treatment of substance abuse problems. The veteran had
reportedly been hospitalized by VA on two separate occasions
(August 1 to August 24, 1995, and December 11, 1995, to
January 13, 1996), for treatment of exacerbated PTSD symptoms
and an increase in homicidal and suicidal ideation. The
veteran's response to treatment provided by the outpatient
clinic had been variable as evidenced by "unabating" PTSD,
episodic alcohol abuse, and fluctuating depressive symptoms.
The psychologist reported that gainful employment would be
extremely difficult, if not impossible, for the veteran "to
manage at this time or any time in the foreseeable future."
The individual stated that without regular therapy and
medication appointments, it was likely the veteran would
experience a deterioration in functioning and an increased
need for hospitalization for his chronic and severe
psychiatric condition. It was stated that the veteran
"clearly" needed ongoing psychiatric care for an
indeterminable period.
In October 1996 a staff psychologist at the same VA facility
reported the veteran had been participating in the VA alcohol
dependence treatment program there since October 1995. For
the past 11 months, there had been a number of individual
sessions, as well as contact in a weekly outpatient relapse
prevention group. For most of the past year the veteran had
resided at a Washington veterans' home. The psychologist
noted that as had been documented by other providers from the
PTSD clinic, the veteran was continuing to exhibit the full
range of PTSD symptoms rendering him unemployable and
socially isolated. The individual noted that despite several
brief drinking relapses related to self-medication of his
chronic sleep disturbance and hyperarousal, PTSD was the
veteran's primary disabling condition. The psychologist
stated that, "given the chronicity and severity of his
symptoms, there is ongoing need for treatment involvement and
no realistic prospect of regular employment in the
foreseeable future."
Additional medical evidence reflects the report of a VA
rating examination of the veteran for psychiatric purposes in
November 1997. It was noted the veteran was attending the
Las Vegas Mental Health Clinic and was on medication for his
depression and sleep difficulties. He was also attending an
anger management group, a PTSD group, and was having
individual therapy with a Vet Center therapist.
On examination he was excitable and talked fast. On a few
occasions he became very emotional and cried. He stated that
he did not think he was capable of working because he had
always had difficulty working with other people. Also, he
had been having pain in his joints and his back, and he
believed this would prevent him from working. He stated that
he knew he was not going to be able to make it should he get
a job. He was coherent and relevant. He showed no memory
impairment for either recent or remote events. Affect and
mood were appropriate. He was alert and oriented and insight
and judgment were adequate. The diagnosis was PTSD, moderate
to severe in degree. A Global Assessment of Functioning
scale score of 48 was given.
The Board believes that the cumulative effect of the
evidence, described above, is a reflection of a psychiatric
disability picture of a veteran who is unable to obtain or
retain employment because of PTSD. Although findings on the
rating examination in November 1997 were interpreted as
showing moderate to severe impairment, the statements from
the various health care providers who had been seeing the
veteran over time, particularly in 1996 were almost uniform
in their assessment that the veteran was not able to maintain
any type of gainful employment because of the severity of his
PTSD symptomatology. The Board also notes that the RO
granted a total rating for compensation based on
unemployability effective as of the date it established
service connection for PTSD. The criteria for a total rating
are essentially the same as those for a 100 percent schedular
rating for a psychiatric disability, i.e. an inability to
maintain gainful employment. In finding the veteran
unemployable, it is true that the RO considered all of the
veteran’s disabilities and not just PTSD. However, it is
also clear that the veteran’s other service connected
disabilities could have played only a minor role in the
finding that he was unemployable. His other disabilities
consist of tinnitus, evaluated as 10 percent disabling and
bilateral hearing loss and malaria, each evaluated as
noncompensable. Accordingly, the Board concludes that a
100 percent schedular rating is warranted pursuant to the
provisions of Diagnostic Code 9411.
The Board notes that the schedule of rating for mental
disorders was amended, effective November 7, 1996, after the
issuance of the May 1996 statement of the case. In light of
the granting of the 100 percent schedular evaluation for PTSD
under the old criteria, however, the veteran is not
prejudiced by the VA's failure to evaluate the disability
level resulting from his service-connected PTSD under the new
criteria.
II. Entitlement to an Effective Date Earlier Than June 30,
1995,
for the Grant of Service Connection for PTSD.
Initially, the Board notes the claim with regard to this
issue is well grounded within the meaning of 38 U.S.C.A.
§ 5107 in that the veteran has presented a claim that is
plausible. The Board finds that the facts relevant to the
issue on appeal have been properly developed and that the
statutory obligation of VA to assist the appellant in the
development of his claim has been satisfied. 38 U.S.C.A.
§ 5107(a).
The effective date for the veteran's claim is governed by
38 U.S.C.A. § 5110(a) (West 1991) which provides that, unless
specifically provided otherwise, the effective date of an
award based on an original claim, a claim reopened after
final disallowance, or a claim for increase of compensation
shall be fixed in accordance with the facts found, but shall
not be earlier than the date of the receipt of the
application therefor. 38 U.S.C.A. § 5110(a); 38 C.F.R.
§ 3.400.
Under the provisions of 38 C.F.R. § 3.157 (1997), once a
formal claim for compensation has been allowed, a report of
VA outpatient or hospital examination will be accepted as the
date of claim if such record pertains to a disability for
which service connection has been established. Otherwise,
such record will be accepted as the date of claim, when a
claim specifying the benefit sought is received within one
year of such examination, treatment, or hospitalization. In
this case, the veteran has submitted a record from a veterans
outreach center showing that he was evaluated for PTSD in
November 1990. However, this record could not serve as the
date of claim under the provisions of § 3.157, because no
claim specifying the benefit sought was received within one
year of that evaluation.
The record contains a report of examination by a VA
psychologist conducted in October 1994. It was reported that
the veteran had received extensive psychiatric treatment in
the past, but that with the exception of an eight-week
program at a veteran’s outreach center, his treatment had all
been in the community. The examiner diagnosed PTSD, although
he noted that stressors needed to be verified.
The veteran's claim specifying that he was seeking service
connection for PTSD was received on June 30, 1995. He
reported that he had received treatment at several different
VA facilities. His address at the time was in the State of
Washington. He reported that he had a claim pending in
California, but had missed compensation and pension
examinations and was willing to report for such examinations
at the present time. In an April 1996 rating decision, the
RO granted service connection for PTSD and assigned a
50 percent evaluation, effective from June 30, 1995.
Because there is a report of VA examination in October 1994
diagnosing PTSD, and a claim for service connection for PTSD
was received on June 30, 1995, the effective date of the
grant of service connection for PTSD should, under the
provisions of 38 C.F.R. § 3.157, be the dated of that
examination, October 19, 1994.
A review of the evidence of record discloses that in a claim
for disability benefits dated February 22, 1994, and received
at the VARO in Los Angeles, California, on March 1, 1994, the
veteran referred to a hearing problem and to residuals of
Agent Orange exposure while in service. No reference was
made in the communication to psychiatric disability. The
veteran was accorded a rating examination by VA in July 1994
and no reference was made to any psychiatric symptomatology.
When the veteran appeared at a hearing at the RO in Los
Angeles, California, in July 1996, he submitted a letter to
him asking that he submit additional information regarding
his claim for service connection for PTSD. The date of the
letter was not typed, but was handwritten and was given as
"6/30/94."
The hearing officer made a call after the hearing to
determine whether a duplicate file, or any kind of lost mail
might be found to explain the letter. However, no additional
materials could be located by the Los Angeles RO. However,
the hearing officer noted that the veteran had been awarded
the Combat Infantryman's Badge. This obviated the need for
stressor verification and therefore raised a question as to
why such a letter would have been sent to the veteran
requesting more detailed stressor information.
An attempt was made by the hearing officer to determine
whether a communication might have been received prior to
June 30, 1995, but he was unable to confirm receipt of a
claim earlier than June 30, 1995. In the absence of a
showing that a claim was received prior to that date, the
Board does not find a basis for granting an effective date
for the grant of service connection for PTSD earlier than
October 19, 1994.
ORDER
An evaluation of 100 percent for PTSD is granted, subject to
the provisions governing the award of monetary benefits.
An effective date of October 19, 1994, for the grant of
service connection for PTSD is granted.
Mark D. Hindin
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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